Banks v. Lappin

March 22, 2008

FREDERICK BANKS,*FN1 PLAINTIFF,v.HARLEY LAPPIN, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on defendants' motion to dismiss or, in the alterative, for summary judgment or for a more definite statement. The motion will be granted in part and denied in part for the reasons explained herein.

I. BACKGROUND

A. Freedom of Information Act and Privacy Act Claims

According to the complaint, plaintiff brings this action in part under the Freedom of Information ("FOIA") Act and the Privacy Act, see 5 U.S.C. §§ 552, 552a. Compl. at 2. It appears that plaintiff has requested records about himself that may be maintained by the Office of the President and Vice President of the United States, as well as the following federal government entities listed in the caption of the complaint: the Federal Bureau of Prisons ("BOP"), the United States Department of Justice ("DOJ"), the United States Department of the Treasury ("Treasury"), the Transportation Security Agency ("TSA"), the Passport Office of the United States Department of State ("Passport Office"), the Library of Congress ("LOC"), the United States House of Representatives, and the United States Senate.*fn2 Id. at 1. Regarding his request to the BOP, plaintiff specifically seeks "information to defend himself about a pending investigation by the SIS Lt. Dodson and Lt. Allen at [FCC] Butner," presumably pertaining to the December 28, 2006 incident described below, as well as "all records concerning R. Partyka his theripist [sic]." Id. at 2. He demands "immediate release of [the] requested records." Id.

B. Civil Rights Claims

It appears that plaintiff's civil rights claims under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 408 U.S. 388 (1971), are brought against staff at the Federal Correctional Complex in Butner, North Carolina ("FCC Butner") and stem from an incident on December 28, 2006.*fn3 Plaintiff alleges that defendants Allen and Dodson "without cause or reasonable suspicion . . . placed [plaintiff] in handcuffs [and] lodged [plaintiff] into the hole to curtail his legal actions in civil and criminal matters because he was black and Indian and because of his pagan religion Thelema." Compl. at 3. Further, plaintiff alleges that defendants Stansberry, Harris, Green, Dodson and Allen "accused [plaintiff] of 'stalking a female staff member' to justify their unconstitutional actions" which violated his "rights to religious freedom, privacy, equal protection," and to be free from cruel and unusual punishment and from unreasonable searches and seizures. Id. In addition, he alleges that defendant Lappin, BOP's Director, "authorized the activity of these liberty rogues . . . from his boardroom office in Washington[,] D.C. in accordance with his de facto policies." Id. at 3-4. For these alleged constitutional violations, plaintiff demands compensatory and punitive damages totaling $135,000,000,000. Id. at 5.

C. False Claims Act Claim

According to plaintiff, through their alleged unconstitutional actions with regard to the December 28, 2006 incident, defendants "willfully[,] knowingly[,] intentionally, purposefully, knowingly [sic], and maliciously took and stole money from the United States from their paychecks, insurance and pensions." Compl. at 5. He demands not only "33% of their assets and income" but also "the assets of their spouses." Id.

D. Defamation Claim

By subjecting plaintiff to the conditions set forth in the complaint, defendants allegedly defamed plaintiff's character and deliberately "raked [his reputation] back and forth through the mud and the gutter upon a pack of lies which was a lie by wolves within another lie." Compl. at 6. Plaintiff demands compensatory and punitive damages totaling $3,000,000. Id.

II. DISCUSSION

A. Freedom of Information Act and Privacy Act Claims

1. Subject Matter Jurisdiction

Generally, the FOIA requires a federal government agency to disclose agency records unless information is protected under a recognized exemption. See 5 U.S.C. § 552(a)(4)(B), (b). The Privacy Act generally pertains to the maintenance, use and disclosure of information about individuals. For purposes of both Acts, the term "agency" includes:

Any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.

Defendants argue that the Court lacks subject matter jurisdiction over plaintiff's claims against the President and Vice President of the United States and the United States Congress because these entities are not "agencies" for purposes of FOIA and the Privacy Act. Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment or for a More Definite Statement ("Defs.' Mot.") at 6-7. The Court agrees.

Although the Executive Office of the President is subject to the FOIA and the Privacy Act, the Office of the President is not an agency for purposes of the FOIA. "The President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President are not included within the term "agency" under the FOIA." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (citation and internal quotation marks omitted); see Nat'l Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990) (concluding that FOIA does not require Counsel to the President, which is part of the Executive Office of the President, to release records under the FOIA); Dale v. Executive Office of the President, 164 F. Supp. 2d 22, 25-26 (D.D.C. 2001) (component of Executive Office whose sole function is to advise or assist the President is not an "agency" for purposes of the Privacy Act); Tripp v. Executive Office of the President, 200 F.R.D. 140, 146 (D.D.C. 2001) (dismissing Privacy Act claims against Executive Office of the President on the ground that the "Office of the President/White House Office" is not subject to the terms of the Privacy Act); Broaddrick v. Executive Office of the President, 139 F. Supp. 2d 55, 60 (D.D.C. 2001) (holding that "inasmuch as the EOP is not an 'agency' subject to the FOIA, the EOP is not an 'agency' subject to the Privacy Act"), aff'd, No. 01-5178, 2002 WL 1359497 (D.C. Cir. May 1, 2002) (per curiam); see also Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 219 F. Supp. 2d 20, 55 (D.D.C. 2002) (concluding that Vice President and his staff are not "agencies" for purposes of the FOIA). Assuming without deciding that plaintiff's "several letters to the President and Vice President" seeking "copys [sic] of all records that pertain to him about him or that mention his name," Compl. at 2, were proper requests, his FOIA and Privacy Act claims against the Offices of the President and the Vice President are dismissed.

Similarly, plaintiff's FOIA and Privacy Act claims against United States House of Representatives and the United States Senate fail, as neither is an agency as these Acts define the term. United We Stand Am., Inc. v. Internal Revenue Serv., 359 F.3d 595, 597 (D.C. Cir. 2004) ("Because Congress is not an ...

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